Gorgis v. TD Insurance Meloche Monnex, 2020 CanLII 115305

Citation: Gorgis v. TD Insurance Meloche Monnex, 2021 ONLAT 19-014226/AABS

Release date: 03/23/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Oshalem Gorgis

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

R.P. O’Connor, Counsel

For the Respondent:

Amir Fazel, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Oshalem Gorgis (“applicant”) was involved in an automobile accident as a pedestrian on October 27, 2014 (“accident”). He was 79 years old at the time. The applicant suffered permanent, severe and catastrophic injuries in the accident. TD Insurance Meloche Monnex (“respondent”) agreed the applicant met the criteria for catastrophic impairment and all applicable benefits were approved until 2019.

2The applicant sought benefits from the respondent in 2019 pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $3,557.76 for physiotherapy treatment recommended by NeuroCore in a treatment plan submitted November 4, 2019, and denied by the respondent on November 25, 2019 (“disputed treatment plan”)?

ii. Is the applicant entitled to a medical benefit in the amount of $4,860.44 for occupational therapy services recommended by Helen Leimonis in a treatment plan submitted on August 28, 2019 and denied by the respondent on September 10, 2019?²

iii. Is the applicant entitled to a medical benefit in the amount of $14,096.44 for occupational therapy services recommended by Helen Leimonis in a treatment plan submitted on January 12, 2018 and denied by the respondent on February 12, 2018?³

iv. Is the applicant entitled to an expense in the amount of $333.96 for protective underwear and wipes that was submitted on November 1, 2019 and denied by the respondent on December 4, 2019?⁴

v. Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits?⁵

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is entitled to the disputed treatment plan with interest.

LAW

5Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.⁶

ANALYSIS

Is the Applicant Entitled to the Physiotherapy Treatment Plan for $3,557.76 (“disputed treatment plan”)?

6The applicant submits that he suffered severe neurological and orthopaedic injuries as a result of the accident and that the disputed treatment plan is reasonable and necessary because he needs active rehabilitation seeking improvements to his strength and gait to allow him to more meaningfully participate in other therapies the respondent is funding.

7The respondent submits that the applicant has failed to discharge his onus to prove that the disputed treatment plan is reasonable and necessary. Further, this treatment plan is redundant and unlikely to achieve its stated goals. The respondent relies on the opinions of it’s assessors Dr. Tabloie, orthopaedic surgeon and Dr. Moddel, neurologist and other evidence to establish that these goals would be adequately or better addressed by in-home exercise as monitored by the existing treatment team.

8I find that the applicant is entitled to the disputed treatment plan because he has provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

9The disputed treatment plan made by Gina Janczyn, applicant’s physiotherapist, proposes 12 sessions of physical rehabilitation for $1439.04, 12 charges for provider travel time totalling $719.52, planning service for $359.76, preparation service for $359.76 and documentation charges of $200.00 and $479.68 for a total cost of $3,557.76. The goals are pain reduction, increase in strength, increased range of motion, improve standing balance, improve coordination (specifically hand-eye coordination), improve ambulation quality and endurance, improve overall activity tolerance/reduce fatigue and the functional goals are return to activities of normal living, integration into community activities, increase independence with activities of daily living and coordinate care with rehabilitation. The improvement from previous treatment is noted to be, regarding pain (no reports of low back pain), regarding strength (increased tension on recumbent bike to level 5 for 10 minutes), regarding gait (quality and speed of gait improves with verbal and visual cueing), and regarding community (tolerated going to church and family dinner and restaurant with family, has assistance from family, resuming community gym sessions).

10The disputed treatment plan notes that the applicant was referred by Dr. Unarket, applicant’s physiatrist, due to his declining physical function and onset of Parkinson’s like symptoms affecting his ability to stand and ambulate and participate in exercise and physical rehabilitation. The strategy outlined is to work with a multidisciplinary team in order to provide a holistic approach to treatment, and collaborate with Dr. Unarket for functional updates after the patient was started on medication for management of Parkinson’s like symptoms, pace therapy and exercises to reduce over-exertion and increase the amount of physiotherapy to increase activity tolerance. The various team members, including Dr. Unarket and Laura McPherson, at a team meeting on October 30, 2019 agreed that physiotherapy should be weekly instead of biweekly to allow for more frequent monitoring of the applicant during activities view a view to improving his activity tolerance. Also noted is that the applicant has been seen at home in an effort to reduce fatigue he has been experiencing from travelling to the clinic.

11Dr. Unarket, a specialist who has treated the applicant since shortly after the accident, is supportive of the applicant’s physiotherapy. August 24, 2018 Dr. Unarket recommended the applicant attend physiotherapy at Neurocore once a week and exercise at home once a week. May 2, 2019 Dr. Unarket expressed concerns with the applicant’s walking and gait. July 31, 2019 Dr. Unarket noted increased shuffling of gait and some resting tremor.

12The February 2019 report of Michelle Duong, applicant’s physiotherapist, confirms that the applicant enjoyed his treatment. The December 2019 report of Ms. Janczyn states the applicant needs further physiotherapy to optimize his gait and balance as he has a fear of falling when walking which is contributing to his decline in gait quality and is a risk factor for falling.

13Ms. Janczyn also reports that the applicant remains at risk for continued decline in physical function with limited amounts of physical activity, he needs one-on-one sessions for safety and guidance and the applicant’s team under the recommendation of Dr. Unarket believes the applicant would benefit most from weekly physiotherapy to keep him motivated, improve his activity tolerance and improve his overall function.

14Ms. McPherson, applicant’s rehabilitation consultant, in her March 17, 2020 report recommends that the applicant receive physiotherapy treatment and home exercise because of his accident related symptoms as supported by his medical and rehabilitation team.

15I find unpersuasive the respondent’s submission that I should prefer the opinions of both Dr. Tabloie and Dr. Moddel that the disputed treatment plan is not reasonable and necessary. Even though Dr. Tabloie noted as a result of his February 2020 assessment of the applicant that he had very short stride gait patterns, left knee pain and coordination issues, Dr. Tabloie opined that daily self-directed home exercises as per the instruction of the applicant’s therapist and under the supervision of his RSW would be sufficient. While home directed exercise may also be helpful, given the nature and severity of the applicant’s injuries suffered in the accident, his age and the recommendations of his multidisciplinary team including Dr. Unarket, I find that the professionally directed physiotherapy set out in the disputed treatment plan is reasonable and necessary to manage, attempt to improve or at least prevent regression of the applicant’s medical conditions.

16Even though Dr. Moddel as a result of his August, 2020 assessment found that the applicant suffered neurological injuries as a result of the accident, Dr. Moddel in his brief report opined that the applicant’s neurological impairment is fixed and treatment will not be helpful in improving it. Dr. Moddel appears to have misapprehended the treatment proposed and its goals. Again, given the nature and severity of the applicant’s injuries suffered in the accident, his age and the recommendations of his multidisciplinary team including Dr. Unarket, I find that the professionally directed physiotherapy set out in the disputed treatment plan is reasonable and necessary to manage, attempt to improve or at least prevent regression of the applicant’s medical conditions.

17I prefer the evidence of the applicant’s multidisciplinary team and his treating physician Dr. Unarket to the opinions of the respondent’s assessor.

18The respondent also submits that the applicant has not provided expert medical evidence to rebut the expert conclusions of Drs. Tabloie and Moddel. I find that rebuttal evidence from the applicant is not necessary in this particular case. The burden of proof is on the applicant and I find that he has met it. I have preferred the evidence put forward by the applicant to that of Dr. Tabloie and Moddel.

19The respondent also submits that the applicant has not submitted a timely opinion or comment directly from Dr. Unarket addressing the disputed treatment plan and that Dr. Unarket’s records reveal ambivalence with respect to the frequency of treatments or exercises. I disagree. Dr. Unarket’s records show that he has been supportive of the applicant receiving physiotherapy treatment through the years. There is no indication in his records that Dr. Unarket has changed his view. To the contrary, the disputed treatment plan notes that the applicant was referred by Dr. Unarket. The treatment plan’s strategy outlined is to work with a multidisciplinary team in order to provide a holistic approach to treatment, and collaborate with Dr. Unarket for functional updates. The applicant’s medical condition is being managed by a multidisciplinary team which includes Dr. Unarket. Reports filed show that other team members also support the physiotherapy treatment proposed.

20The respondent also submits that the applicant has achieved maximum medical recovery and the disputed treatment plan duplicates services provided by his PSW and RSW. I find these arguments unpersuasive. The weight of the medical evidence is that the applicant has ongoing medical issues arising from the accident. I have already found that the professionally directed physiotherapy set out in the disputed treatment plan is reasonable and necessary to manage, attempt to improve or at least prevent regression of the applicant’s medical conditions. The physiotherapy proposed is not duplicative of the services given by the PSW and RSW who are not trained physiotherapists. The three previous Tribunal decisions relied on by the respondent⁷ are not helpful here as they are not binding on me but more importantly turn on the findings of fact made. Here, I have found that the applicant’s evidence has established that it is more likely than not that the disputed treatment plan is reasonable and necessary as a result of injuries suffered by the applicant in the accident.

21On review of the disputed treatment plan, I find that goals listed are all appropriate, reasonable and necessary goals for the applicant’s treatment. Although the disputed treatment plan does not propose to rectify completely any of the applicant’s conditions, it does aim to manage his mobility limitations, improve his walking and improve his strength.

22I find that the applicant has experienced enough improvement as a result of this treatment that it is reasonable and necessary to allow his treatment to be continued. The reports show that this treatment has helped him and permitted better management of his conditions resulting from the accident.

23I find that the overall cost of achieving these goals is also reasonable. The costs of the plans appear to be in line with the Schedule and the respondent did not persuasively argue otherwise.

24After considering all of the evidence and submissions made, I find that applicant has established with medical evidence that the disputed treatment plan is reasonable and necessary.

Interest

25Interest is payable in accordance with s. 51 of the Schedule.

ORDER

26For the reasons outlined above, the applicant is entitled to the disputed treatment plan with interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Withdrawn by the applicant at the hearing, Applicant’s submissions dated November 2, 2020, para 9.
3. 3Withdrawn by the applicant at the hearing, Applicant’s submissions dated November 2, 2020, para 9.
4. 4Withdrawn by the applicant at the hearing, Applicant’s submissions dated November 2, 2020, para 9.
5. 5Withdrawn by the applicant at the hearing, Applicant’s submissions dated November 2, 2020, para 9.
6. 6Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
7. 717-001363 v. Allstate Canada, 2018 CanLII 39453 (ON LAT); 17-004754 v. Aviva General Insurance, 2018 CanLII 81891 (ON LAT); 16-001928 v. Aviva Insurance Canada, 2017 CanLII 81605 (ON LAT).